Kitzmiller v. Dover Area School District

Trial transcript: Day 16 (October 27), PM Session, Part 2

MR. WHITE: Your Honor, just for the record, we
continue our objection to the limited discovery and the limited
inquiry we're allowed to have with the reporters per your orders,
especially the one on September 28th of 2005.

THE COURT: Well, your objection is preserved, I'm
sure, but we'll note that for the record.

MR. BENN: Thank you. My name is Niles Benn, and
I'm here on behalf of Heidi Bernhard-Bubb, as well as Mr.
Maldonado, who is going to be testifying after Ms. Bernhard-Bubb.
I'm representing both reporters with respect to this matter and
have represented them through this process, including the court
order referred to by Mr. White.

THE COURT: And it's the Court's understanding and
I want to make sure that we're all clear, and I mean all counsel,
that Mr. Benn is appearing specially in the capacity as just
stated and that Mr. Benn will be allowed to interpose an
objection pursuant to his limited representation of the
reporters. Is that acceptable or understood, at least, by all
counsel?

Q. I want to go through a series of questions that
will apply to all of the articles before we focus on the eight
articles today. When you attend Dover area school board meetings,
you generally sit in the same place?

Q. Now, I'm going to discuss with you eight
articles that you wrote between June and November of 2004. And
let me just ask you a couple of general questions that will apply
to all eight of these articles. These are all articles about
which you were questioned in your deposition a couple of weeks
ago.

Do you testify here today knowing that you're
under oath, that those articles accurately depict what happened
at Dover School Board meetings?

Q. Let me just tell you that you can look at the
exhibit in two places. You can either look at the hard copy, we
also project it up on the screen, which is the same thing that's
on the monitor in front of you, whatever is easier for you. Do
you recognize what's been marked as Plaintiffs' Exhibit 804?

Q. Matt, if you could highlight the first
highlighted passage beginning with the third paragraph. At the
very top of the highlighted passage it reads, William Buckingham,
board member and head of the curriculum committee, said he is
unhappy with the proposed ninth-grade biology textbook because it
teaches evolution and not creationism. Did I read that
correctly?

Q. But it does say, in the middle of that
paragraph, that Mr. Buckingham said he is unhappy with the
proposed ninth-grade textbook. Could you explain to us how you
wrote that, when you put quotes in and when you don't put quotes
in?

A. Yes, I can do that. Primarily in this situation
where I'm paraphrasing, paraphrasing is primarily used for the
sake of concision and for the sake of accuracy.

A lot of times, for instance, during a meeting a
dialogue might go on for over an hour. A person may say a number
of things. Their position may become clear in response to
questions, to dialogue with other board members, et cetera.

And so primarily paraphrasing is used to
accurately reflect their position based on the content of the
entire conversation and based on what they said. But whether I'm
quoting something verbatim or whether I'm just attributing to
them or paraphrasing a quote, it always comes directly from what
they said.

Q. So, for instance, in that first paragraph that
I just read to you, there are no quotes, but to your
recollection, are there things that you could have put in
quotes?

A. I don't know the exact language, but certainly
it was something that he said, that he was unhappy with the
textbook, et cetera.

Q. Now, let's look at the second paragraph there.
Matt, if you could highlight that quote. And that reads, quote,
It is inexcusable to have a book that says man descends from apes
with nothing to counterbalance it, Buckingham said of the book.
And he's referring to Miller and Levine.

So, now, that is in quotes and attributed to
William Buckingham. So what does that mean that it's in
quotes?

A. That means that it was taken verbatim from what
he said and nothing was omitted, there was -- all of the language
was his.

Q. And as you described your practice earlier,
what you would have done is written down exactly those words in
your notes?

Q. Let's look at the third paragraph there. And it
says that Mr. Buckingham had not read the current text, current
biology text. He said that the committee would be looking for
another textbook. Again, there are no quotes in that paragraph.
Correct?

Q. But you do say that he, quote, said that the
committee will be looking for another textbook. So do I
understand that at some point in the course of the meeting, that
is, he said words to that effect?

Q. Let's look at the fourth paragraph there. And
it reads, He said he had no objection to evolution being
presented as a theory but believes it should not be presented as
the only one to explain human existence. Now, again, there are no
quotes in that paragraph?

Q. Matt, if you could highlight the next set of
passages, please. Now, starting at the bottom of the first column
there and going down to about the middle of the second column, is
that something you wrote?

Q. Matt, if you could now highlight the next set
of passages, please. Looking at the second column about halfway
down, it talks about Superintendent Richard Nilsen. Now, are
these comments that Dr. Nilsen made during the board meeting?

A. I believe these comments were made after,
directly after the board meeting.

Q. And do you, on occasion, stay and ask questions
of board members and administrators?

Q. And can you give us context about where you --
when and where this conversation took place?

A. Yes. This would be directly after the meeting.
Dr. Nilsen sits at the front of the room at the table with the
school board members. I typically go up to the front of the table
and ask my questions there, try to catch him before he
leaves.

Q. And let's look at the second paragraph there.
It says, quote, The teachers cannot teach from a book that is not
board-adopted. Is that an exact quote that you heard Dr. Nilsen
make?

Q. Now, in the last paragraph of the amplified
passage there, it says, When asked what this means for the
evolution versus creationism debate, Nilsen said, Dover will,
quote, present all options and theories, end quote. Now, the part
that's in quotes, I presume, is what he said directly?

Q. Matt, if we could go to the next set of
highlighted passages. Now, starting at the bottom of the second
column on Exhibit 804 down through the middle of the third
column, there's a quote from an ACLU staff attorney, Paula
Knudsen. Is that something that happened on the evening of June
7th?

A. No, that would have happened the next morning,
and, again, that was written by the editors.

Q. And at the end of that passage it says, Nilsen
said he is not concerned about exposing the district to a
possible lawsuit. When did he say that?

A. I believe I asked him a question to that effect
at the meeting that evening, after the meeting.

Q. Let's go to the next passage. Now, here's a
passage referencing Board President Alan Bonsell. And you write
in there that he said the board would look for a book that
teachers and board members could approve, one that presents a
fair and balanced approach. Do you know what he was talking about
there?

A. I can only say that he was -- that was in
relation to the discussion brought up about the book that was
being discussed.

Q. And, again, there are no quotes in that
paragraph. Do you have a recollection of whether any of those
words could have been in quotes?

A. I believe "fair and balanced approach" could
have been in quotations.

Q. And then in the next paragraph it says,
Buckingham said, although the book had been available for review
since May, 2003, he had just recently reviewed the book himself
and was disturbed the book was laced with Darwinism. I think I
read that correctly.

Q. And if you could go down to the third
paragraph. Matt, if you could highlight. Now, that paragraph
talks about Mr. Buckingham believing that the separation of
church and state is mythical and not something he supports. Now,
is that something that Mr. Buckingham said during the
meeting?

Q. Now, in that last paragraph, it says, quote, He
said that he would present options to the curriculum committee
and give the committee more information about how the district
teaches evolution and creationism. Now, did he use the term
"creationism"?

A. I can't recall if he used the term exactly, but
I asked the question with the term "creationism" in it, asking
him how the district teaches evolution and how it addresses
creationism if it comes up in the class.

Q. So your question to him would have contained
the word "creationism"?

Q. Matt, if you could highlight the term
"creationism" in this article. Now, Ms. Bernhard-Bubb, the term
"creationism" appears throughout this article. Matt, if you could
put the second page up there, as well. And we've highlighted all
the times that "creationism" appears here in orange. But the only
time that I believe it appears in this article in quotes is when
Mr. Pell was using it.

A. I believe that was during the time that
Nightline was there doing a piece on the district. I believe Time
Magazine had been there. I think reporters from the Associated
Press, Washington Post, and I think maybe The New York Times had
been there.

Q. And do you know whether the board members knew
that these reporters were there?

Q. Matt, if you could highlight the first three
paragraphs. In that first paragraph, it says, The quest of
several Dover Area School Board members to find a high school
biology textbook that teaches both evolution and creationism
could put the district at odds with the U.S. Supreme Court and at
risk of a lawsuit. Is that based on what you had observed on June
the 7th?

Q. Matt, if you could highlight the second set of
passages. If you'll look down, I think it's the fifth paragraph,
it starts with, A recommendation. It says, A recommendation on
the book will come from the curriculum committee, which also
includes board members Sheila Harkins, Casey Brown, Buckingham --
and Casey Brown. Buckingham said the committee would look for a
book that presented both creationism and evolution.

Do you recall Bill Buckingham saying that they
were looking for a book that presented both creationism and
evolution?

A. I don't know -- he didn't say that exact
sentence. He said -- that goes back to the discussion, though,
where he was talking about wanting to look for a book that might
contain creationism and looking for a balance to the theory of
evolution.

Q. But you did hear him say that he was looking
for a book that presented creationism?

Q. And the next set of paragraphs at the bottom of
column one going over to the first paragraph of column two, it
talks about a Robert Boston, spokesman for Americans United for
Separation of Church and State.

Q. And, again, there are no quotes, but could any
of that have been in quotes?

A. I can't recall exactly, but that's based on
what Mr. Boston told me.

Q. If you could, Matt, highlight the next
set of passages. If you look at the bottom of the second column
and over onto the first paragraph on the next page, you say, But
Buckingham said he is unconcerned about violating the separation
of church and state.

A. That's going back to the questions that I
asked him after the June 7th meeting.

Q. And then on the next page, at the top,
you write, Although he swore to uphold the Constitution when he
became a school board member, Buckingham said he didn't come to
uphold the separation of church and state, which he sees as a
myth, and the Supreme Court's interpretation.

Q. And in the third highlighted passage, you
wrote, However, he said teachers may make reference to
creationism in class, and the district would not prevent students
from pursuing other theories. Now, is "creationism" a term he
used with you on June the 8th?

A. Yes, specifically in response to a
question I was asking him about how they dealt with it if
creationism comes up in class.

Q. And then in that next paragraph you said,
Baksa said -- The district has not rejected the proposed new
textbook, Baksa said, but it will continue to look for a book
that will make everyone happy. Again, is that something he said
to you on Tuesday, June the 8th?

Q. Matt, if you could highlight the first
several paragraphs. Now, in that first paragraph, it says -- it's
pretty hard to read there, but I think it says, Nearly a hundred
people -- can you make it out on the copy you have?

A. I can't, but I believe it's something to
-- nearly a hundred residents, students, and teachers attended,
either residents or parents.

Q. To continue debating whether creationism
should be taught alongside evolution in the high school biology
curriculum. So there were nearly a hundred people at that
meeting?

Q. Matt, if you could highlight the next set
of passages. If you look at the bottom, the very last two-line
paragraph over to the top of the next page, it talks about Board
Member and Curriculum Committee Member Casey Brown said it is her
duty as a board member to uphold her oath to support the
Constitution and the school code, which she said is clear about
the separation of church and state.

Q. And you write, Brown quoted from the
teacher's edition that the purpose of the section on evolution
was to, quote, help students understand the evolutionary world
view and promote understanding without compelling belief, end
quote.

Q. Now, I want to go to the first four
paragraphs at the top of the second column on the second page of
Plaintiffs' Exhibit 806. And I believe the subtitle is,
Opponents' position. Can you tell what that says?

Q. Now, in that next paragraph it says,
Buckingham apologized for offending any teachers or residents of
the community with his remarks but was unapologetic about his
belief that the country was founded on Christianity and not other
religions and that a, quote, liberal agenda was chipping away at
the rights of Christians in this country. Did I read that
accurately?

Q. Now, there's been some significant
dispute in this case about whether Mr. Buckingham said the quote,
Nearly 2,000 years ago someone died on a Cross for us, shouldn't
we have the courage to stand up for Him.

Is there any doubt, as you sit here today,
that you heard him make that statement at the June 14th, 2004
Dover Area School Board meeting?

A. In the -- where the meeting was held, he
was sitting at the front of the room at the board table.

Q. Matt, if you could highlight the next
paragraphs. In that middle paragraph on the second column you
say, His remarks, referring to Mr. Buckingham, were echoed by his
wife, Charlotte Buckingham, who said that teaching evolution was
in direct opposition to God's teachings and that the people of
Dover could not, in good conscience, allow the district to teach
anything but creationism.

Q. And then in that next paragraph you said
that he said that he believes people might believe in both God
and evolution, adding that while public schools should have
values, religious beliefs should be taught at home and church.
Eshbach also said he was concerned that compelling the staff to
teach creationism might expose the district to legal
ramifications that could impact the taxpayers.

Now, there are two aspects to that. The
first one was that he expressed concern that religious beliefs
should be taught at home and church?

Q. Matt, if you could highlight the
creationism and intelligent design. Now, we've highlighted in
orange here the uses of creationism and then highlighted in blue
the uses of intelligent design. Is this -- is the August 2nd
meeting the first time you heard school board members mention
intelligent design?

Q. Matt, if you could highlight the
paragraphs under the subheading "companion." Now, in that first
paragraph under the subheading "companion," you wrote, William
Buckingham, the head of the school board curriculum committee,
who brought up the issue of teaching creationism in June, said he
would approve the biology textbook, the 2004 edition of Prentice
Hall Biology, only in conjunction with a companion text that
teaches intelligent design. Did I read that correctly?

Q. Now, in that next paragraph it says,
Buckingham proposed a book titled Of Pandas and People: The
Central Question of Biological Origins. Is this the first
reference that you heard at a school board meeting to the book Of
Pandas and People?

Q. Matt, if you could highlight the second
set of passages. And under deadline it says, Buckingham proposed
waiting to approve the Prentice Hall Biology until the other book
had been reviewed. However, a delayed vote would have meant that
the students and teachers would not have a biology text for the
new year. Is that something that became clear during that
meeting?

Q. Now, in that next paragraph there's a
quote attributed to Jeff Brown. And it reads, quote, I don't like
blackmail, I don't like it that if we don't approve this other
book, then that means no book, end quote, said a visibly upset
Jeff Brown.

Now, the fact that that passage is in
quotation marks, does that mean that's a verbatim quote of what
he said at that meeting?

Q. And in the next paragraph there's a quote
that says, In 90 days of class, we only spent one day on
evolution, so because of this one issue they don't get new books,
end quote. Is that something that he said at that meeting?

A. No, I believe he spoke during the board
discussion, but it was in public.

Q. So do the student representatives to the
board get an opportunity to present their views?

A. Not typically, but in this case they did
allow it. Actually, I think they always -- they don't typically
speak, but I think they always allow them to if they have a
comment.

Q. And in the next paragraph it says,
Buckingham maintained that the books should only be approved
together, saying, quote, We have an opportunity to level the
playing field, what is everyone so afraid of, end quote. And that
quote, again, is verbatim for what you heard Mr. Buckingham
say?

Q. Now, in that next paragraph it refers to
Casey Brown and indicates that she said that as a member of the
curriculum committee, she had read the proposed supplemental text
from cover to cover and that she didn't believe it fit with the
district's curriculum, was not sure about the concept of
intelligent design, and was sure that it contained, quote, bad
science, end quote. You recall her saying "bad science"?

Q. And it says that she decided to change
her vote to move the process forward. And then in that last
highlighted paragraph it says, The Prentice Hall Biology book was
approved five to three. So it was approved because Angie Yingling
changed her vote?

Q. Now, Matt, if you could highlight that
second paragraph. Now, again, it makes reference to Robert Boston
at Americans United for Separation of Church and State and says
that they're inviting a lawsuit. Now, did you talk to Mr. Boston
again, or is this --

A. It's creating a context for the next
sentence. So I did not speak to him again.

Q. In the next sentence there you say,
William Buckingham said he has received a letter from Americans
United threatening to sue?

Q. Matt, if you could highlight the
paragraph beginning at the bottom of the first column going down
the second column. Now, in the middle of that second column you
have, Mr. Buckingham said it is important to distinguish between
the concept of creationism, which refers to God, and the creation
story in the Bible and intelligent design, which states that some
being caused life to begin somehow. He said the distinction is
important because intelligent design is not specific to one
religion.

Q. And there's a quote attributed to an
Andrea Heilman, identifies her as a resident, and it says, quote,
I am responsible for my children's religious education, not some
public educator. And then it continues, We need to let educators
educate and let parents and religious leaders nurture, end quote.
Did I read that correctly?

Q. And it says that she is a biology teacher
for 35 years at the high school level and at York College and
Millersville University, and then it reads that she said in all
her years of teaching evolution, she had never seen a student or
adult lose faith in God after learning about Darwin and the
theory of natural selection. Is that something she said during
her comments?

Q. And then you have a quote from her. It
reads, I wonder what the motivation in bringing in the Pandas
book; if it is evangelism in the public schools, then it is
inappropriate, she said. It's a faith issue. To teach it as
science is a perversion, end quote. Again, that's a direct quote
of what she said to the board?

Q. And you have a quote attributed to her
about halfway down that first column, and it reads, quote, There
seems to be a determination among some board members to have our
district serve as an example to flout the legal rulings of the
Supreme Court, to flout the law of the land. They don't seem to
care. I think they need to ask the taxpayers if they want to be
guinea pigs, end quote, Casey Brown said this morning. Is that
something she said to you?

Q. And then towards the bottom of that
column you have another quote attributed to her. Quote, It's a
waste of money, how do we answer to the taxpayers, we are
committing the district and taxpayers to a no-win fight. I
believe if you want to make a change, you go to the legislature,
end quote, she said. Again, is that a direct quote attributed to
her?

Q. And then there's a quote attributed to
Mr. Baksa: Of Pandas and People would still be used only as a
reference text, and added that the teachers would not spend a lot
of class time teaching intelligent design but would only
introduce the theory.

A. I don't know whether he used that word or
if my question was to him, how are you going to teach this if
you've made it part of the curriculum. But it would have been
either him saying that or in response to my question.

Q. Now let's turn to Exhibit 810, which I
believe I gave you just a moment ago. Do you recognize this
exhibit?

Q. Matt, if you could highlight the first
paragraph. In that first paragraph you write that Dover Area
School Board's decision two weeks ago requiring intelligent
design theory to be included as a high school biology reference
text dominated last night's board meeting with former board
members criticizing the move and one denouncing others on the
panel and quitting the meeting.

Q. And you write there that Wenrich said
that he and residents in the audience have been personally
attacked and insulted at the last meeting by Buckingham and by
the board. Did he say words to that effect?

Q. And then you have a quote attributed to
him. Could you read that quote, please?

A. (Reading:) I was referred to as
unpatriotic, and my religious beliefs were questioned. I served
in the U.S. Army for 11 years and six years on this board.
Seventeen years of my life have been devoted to public service,
and my religion is personal. It's between me, God, and my
pastor.

Q. And if you could look at the first two
paragraphs in the second column. It says, Board President Alan
Bonsell told Wenrich he was out of line in making comments of a
personal nature which he had asked the public to avoid at the
beginning of the meeting, saying that he was disappointed in the
conduct of some board members and residents at the meeting two
weeks ago.

Q. And then you have a quote that you write
that Mr. Wenrich shouted from the front of the room that he had
enjoyed his service but could, quote, no longer sit with these
people, end quote. That's a verbatim quote?

Q. And then in that next paragraph you wrote
that Brown suggested that the board rescind its decision on
intelligent design but offer an elective class on religions of
the world so that students could be exposed to all of the world's
faiths. Is that correct?

Q. And it reads, The decision could make
Dover a national test case over what can be taught in public
schools. Did somebody say that?

A. That's my -- that's my writing, but
that's in reference to things that were said by board members.
Casey Brown had said something to that effect. I'm not sure of
the order of this, but in another article I had interviewed some
people from the National Science Center for Education in Oakland.
They had said something to that effect.

THE COURT: Why don't we then end our trial
day here. It's probably an opportune time to do that to give you
the time that you need without compressing it at the end of the
day today, and we will reconvene and pick up your
cross-examination at 9:00 a.m. tomorrow. Anything else for
today?